Papers relating to the foreign relations of the United States, 1929, Volume II

883.05/302

The American Minister in Egypt (Gunther) to the Egyptian Prime Minister and Acting Minister for Foreign Affairs (Mahmoud Pasha)¹⁹

Cairo, April 18, 1929.

No. 95

Excellency: I have the honor to refer to paragraph No. 4 on page 2 of my Note No. 65 of January 31, 1929, in reply to the Note received from His Excellency Hafez Afifi Bey under date of October 28, 1928, reopening the general subject of the capitulatory régime in Egypt and requesting particularly that the specific proposals in this sense made by the Royal Egyptian Government in its Note of December 25, 1927, be recalled to the attention of the Government of the United States.

By the paragraph in question, after informing Your Excellency’s Government, in reply to the fourth of the proposals in question, that my Government recognizes the desirability of creating an additional chamber in the Mixed Court of Appeals, I had the honor to recall to the attention of the Royal Egyptian Government the position of the American Government in favor of bringing about a return to the principle of equality of representation as among the principal capitulatory powers represented in the Mixed Court judiciary, including, specifically, the proposed new chamber. I added, under instructions from my Government, a statement to the effect that, as His Excellency Hafez Afifi Bey was aware, the American Government had never acquiesced in the departure, which has taken place in recent years, from this principle.

I am now in receipt of further instructions from my Government directing me to supplement the representations on this particular subject made in my last Note. In particular, I am desired to set forth clearly that a failure to recognize this principle of equality insofar as the United States is concerned in the forthcoming appointments to the Mixed Court of Appeals and of First Instance will inevitably lead to an unfortunate impression upon my Government.

I had anticipated seeking an early occasion to discuss this matter in detail with Your Excellency. Unfortunately, however, my present illness prevents my doing so. I take this means, therefore, to bring the matter again to the attention of Your Excellency’s Government desiring particularly to acquaint Your Excellency with the very specific nature of my present instructions.

Your Excellency will, of course, realize that my Government has no intention of making its final assent or dissent to the proposals for judicial reform as submitted by the Royal Egyptian Government in its Notes of December 25, 1927 and October 28, 1928, the subject of a diplomatic quid pro quo. These proposals have received the sympathetic consideration of my Government which will continue to consider them strictly on their merits. And it would be farthest from my mind to suggest that the final assent of my Government should be contingent upon the appointment to the Mixed Courts of additional American judges.

With respect, however, to the fourth of the proposals in question my Government is, as I have already stated, earnestly desirous that with its adoption there should be, at the same time, a formal recognition of the principle that no preponderance should be given to any one nationality when selecting the foreign members of the Mixed Court judiciary.

Something over two years ago, following an exchange of Notes, dated respectively April 9 and May 16, 1926,²⁰ my predecessor on March 28, 1927, set forth orally in the course of an extended official interview with His Excellency Sarwat Pasha, then Royal Egyptian Minister for Foreign Affairs, the detailed views of my Government with respect to the question of the applicability to the selection of the Mixed Court judiciary of the principle of equal representation amongst the principal capitulatory powers.²¹ This principle, my predecessor was instructed to maintain, if carried to its logical conclusion, would necessarily recognize the fact that the representation of any lesser capitulatory power or of any non-capitulatory country should not exceed that accorded to the principal powers, a conclusion sanctioned also by the practice of nearly forty years. My predecessor was to add that there was no doubt in the mind of his Government that at the time of the entry into force of the Khedive Ismail’s project of judicial reform this principle and its logical consequence were properly considered as applying to the selection of the foreign judiciary of the proposed Mixed Tribunals.

In his Note of April 9, 1926, my predecessor quoted an extract from a Note addressed on May 26, 1873 to His Excellency Nubar Pasha by Sir Henry Elliot, at that time His Britannic Majesty’s representative at Constantinople,²² wherein the Egyptian Government was informed that the British Government was “prepared forthwith to accept the proposed arrangements respecting the judicial reforms in Egypt” on the condition, amongst others, “of avoiding giving any preponderance to one nationality over another in the selection of [the] judges either in constituting the tribunal or in supplying the vacancies that may from time to time occur among them.” A copy of this letter was formally transmitted to my Government by the American Minister at Constantinople under covering despatch dated May 27, 1873, and the principle outlined therein was considered by my Government as fundamental when, by Proclamation of the President, dated March 27, 1876,²³ the adherence of the United States was given to the judicial reform in Egypt.

Having thus stated the general proposition upon which my Government’s contention in this matter is based, I have the honor to enclose a memorandum elaborating in some measure the considerations which led logically to the adopting of that proposition. This memorandum, I venture to point out to Your Excellency, constitutes but little more than a written statement of the oral reply made by my predecessor to the aforementioned Note received from the Royal Egyptian Ministry for Foreign Affairs under date of May 16, 1926.

In the opinion of my Government, the present is a particularly opportune and propitious moment at which to press for a recognition of this principle of equality as a general proposition as well as for its application, insofar as may be reasonably possible, to the present situation. I have already had occasion to make this clear both to His Excellency Hafez Afifi Bey and to the Judicial Advisor in the course of friendly informal conversations on the subject.

At the present time Your Excellency’s Government is considering the question of the establishment of an additional chamber of five judges on the Mixed Court of Appeals and is proceeding to the appointment of three additional judges of first instance. Five of these eight judgeships will, of course, be filled by the appointment of foreign nominees. Those of first instance, I am creditably informed, are to be a Belgian and a Greek national, in accordance with decisions already taken by Your Excellency’s Government and communicated respectively to the Belgian and the Greek Governments. And I have learned from the Judicial Advisor that Your Excellency’s Government is considering adopting similar decisions whereby the French and Italian Governments and that of one of the lesser powers would be invited to nominate judges to fill the three proposed foreign posts on the Mixed Court of Appeal[s].

The present representation of the different foreign powers on the Mixed judiciary is, as Your Excellency is aware, as follows:

Of the four remaining principal capitulatory powers: Great Britain, 7; Italy, 5; France, 4; United States, 3.

Of the eight lesser capitulatory powers: Belgium, Greece, Norway and Spain, each 3; and Denmark, Netherlands, Portugal and Sweden, each 2.

Of the non-capitulatory powers: Russia and Switzerland, each 2; and Germany, 1.

From these figures it is obvious that the representation of the United States on the Mixed Courts is not commensurate with its position as a principal capitulatory power or in accordance with the principle of equality which is enunciated above and elaborated in the enclosed memorandum. The other three principal capitulatory powers are each represented by a greater number of judges than is the United States, and half of the lesser capitulatory powers have an equal representation.

If, however, the five presently considered appointments are made on the basis of the information mentioned above, this disparity which is now obvious will become even more striking. Not only will the present disparity between the representation of the three other principal capitulatory powers and that of the United States be increased, but that of two of the lesser capitulatory powers will become greater than that of the United States, and one other of the lesser powers will advance into a place at least equal to that of the United States.

In conclusion, I have the honor to express the hope that Your Excellency will be disposed to consider the situation set forth above in the same friendly spirit which has always characterized the relations which it has been my very great pleasure to maintain with Your Excellency’s Government. I have set forth my Government’s position in favor of bringing about a return to the principle of equality of representation as among the principal capitulatory powers represented in the Mixed Court judiciary and of avoiding giving any preponderance to one nationality over another in the selection of the foreign judges. And I have stated, under instructions from my Government, that a failure to recognize this principle insofar as the United States is concerned in the forthcoming appointments will inevitably lead to an unfortunate impression upon the American Government. I feel certain that with Your Excellency’s support a solution of the matter satisfactory alike to our two Governments will be found.

I avail myself [etc.]

Franklin Mott Gunther

[Enclosure]

Memorandum

To accompany Note No. 95 of April 18, 1929, to His Excellency the Royal Egyptian Minister for Foreign Affairs, p. i.

on the

Question of the Applicability to the Mixed Court Judiciary of the Principle of Equality of Representation Among the Principal Capitulatory Powers and of Avoiding Giving any Preponderance to One Nationality Over Another in the Selection of the Foreign Judges

and being in the nature of a written

Reply to the Note No. 29.9/2 (1065) addressed by the Royal Egyptian Ministry for Foreign Affairs to the American Legation, Cairo, under date of May 16, 1926.

In the American Minister’s Note No. 339 of April 9, 1926, to which the Royal Ministry’s above-mentioned Note of May 16th was in reply, the Minister quoted extracts from the letter addressed by Sir Henry Elliot to Nubar Pasha under date of May 26, 1873, wherein the Egyptian Government was informed that the British Government was “prepared forthwith to accept the proposed arrangements respecting the judicial reforms in Egypt.” After a careful study of the available correspondence the American Government concurs in the conclusion which the Minister appears to have drawn from these extracts, i. e. that one of the conditions made by the British Government in giving its adherence to the Khedive Ismail’s program of judicial reform, as drafted by the International Commission which sat in Constantinople during the latter months of 1872 and the early months of 1873, was that “of avoiding giving any preponderance to one nationality over another in the selection of judges either in constituting the tribunal or in supplying the vacancies that may from time to time occur among them.” Sir Henry Elliot’s letter appears to be clear on this point, for he adds that “Her Majesty’s Government have instructed me to intimate that their final acceptance was dependent upon the maintenance of this principle.”

Stated in other terms, the principle to which expression was given by Sir Henry Elliot was that there should be equality of representation as between the principal capitulatory powers in the appointment of foreign judges chosen to serve on the Egyptian mixed tribunals. This principle carried to its logical conclusion would necessarily recognize the fact that the representation of any lesser capitulatory power or of any non-capitulatory country should not exceed that accorded to each of the principal powers, a conclusion sanctioned by the practice of nearly forty years. There is no doubt in the mind of the American Government that, at the time of the entering into force of the Khedive Ismail’s project of judicial reform, this principle and its logical consequence were properly considered as applying to the selection of the foreign judiciary of the proposed mixed tribunals, i. e. to the selection of the foreign judges to serve both on the Court of Appeal[s] as is evident from the earlier negotiations, and on the inferior courts, as evinced by the later negotiations which led to the choice of two magistrates from each of the principal capitulatory nations to serve on the courts of first instance. A copy of Sir Henry Elliot’s letter was formally transmitted to this Government by its Minister at Constantinople under covering despatch dated May 29, 1873, and the principle outlined therein was considered by this Government as fundamental when, by proclamation of the President dated March 27, 1876, the adherence of the United States was given to the judicial reform in Egypt.

As a matter of fact, from 1876, the year in which the Mixed Courts commenced to function, to 1915, there was but one departure from this principle of equal representation, i. e. when a French national was appointed to fill one of the two supplementary seats, created in 1879, on the Court of Appeal, thus giving to France a total representation of four, or one greater than that of any other foreign power, on the mixed judiciary. With respect to this case, however, it should be noted that, upon the retirement of the French appointee, his place was filled by a judge of Portuguese nationality.

In 1915, following the proclamation of the British protectorate over Egypt, one French and two British judges were appointed to fill three of the four vacancies left in the judiciary of the first instance courts by the forced vacating of the seats of the German and Austrian judges. The fourth of these vacancies was filled the following year by the appointment of a judge of Italian nationality. Further, in 1920 and resulting indirectly from the elimination of German, Austrian and Russian representation on the Court of Appeal, two additional British judges were appointed to serve on that tribunal. These comparatively recent departures from the principle of equal representation were noted by the American Government but no formal objections were made to the Egyptian or Allied governments for the reason that the American Government had under advisement certain proposals of the British Government which, should they have been adopted by the interested foreign powers, would have led to the conclusion of agreements between them and Great Britain whereby the latter’s special position in Egypt would have been recognized and whereby there would have been confided to Great Britain the powers necessary to enable it to discharge the duties which that special position was alleged to impose upon it both towards Egypt and towards foreign nationals there residing.

An essential feature of these proposals was that which provided for a “reconstitution of the mixed tribunals” amounting in effect to the transfer thereto of the jurisdiction exercised in Egypt by the consular courts of the various capitulatory powers. That this particular matter was still under consideration at the time of the most recently expressed adhesion of the powers to the Mixed Courts is evident from the phraseology of the Egyptian Government’s circular Note of September 4, 1921, addressed to the representatives of the capitulatory powers in Cairo.²⁴ In that circular the Egyptian Foreign Office, when requesting the representatives to secure the adherence of their governments “to continue the present Mixed Courts for an indefinite period,” stated that “the Egyptian Government does not find it expedient to establish a new organization for these courts by the date mentioned.” It was with the foregoing considerations in mind that the American Minister in the course of his conversation with His Excellency Sarwat Pasha on March 28, 1927, when mentioning the various precedents for the appointment of a British judge to succeed Judge Booth, referred to them as “not, however, necessarily closed to objection.” These same considerations led the American Government logically to the necessity of instructing the Minister to file with the Royal Egyptian Minister for Foreign Affairs an oral exception to the closing paragraph to the Royal Ministry’s Note of May 16, 1926.

Leaving for the moment further consideration of the Royal Egyptian Government’s Note of May 16 and returning to the discussion of the applicability to the foreign judiciary of the principle of equal representation as amongst the powers, it is to be noted that not only did Sir Henry Elliot express, on behalf of his Government, adherence to this principle, but he clearly indicated, also, that his Government’s action was taken specifically in response to proposals received from the Khedive Ismail. The recognition by Egypt of this principle is, in the opinion of the American Government, clearly to be inferred from that passage of Sir Henry Elliot’s letter in which he states that “the question … respecting the nationality of judges … received the attention it deserved from Her Majesty’s Government who concur in the view of the Khedive as to the importance of avoiding giving any preponderance to one nationality …”. As of collateral interest in this connection, reference may be made also to letters addressed by Nubar Pasha to the American Chargé d’Affaires and to the Italian Minister at Constantinople under dates of January 17 and February 24, 1873 (i. e. some months earlier than the date of the British Note) wherein, with reference to the question of equal representation amongst the powers in the choice of judges for the proposed court of appeal, he stated, in part, as follows:

To the American Chargé dAffaires: “… l’intention de Son Altesse est de composer notre cour d’appel de magistrats pris dans les pays qui ont été representé et ont étudié la question dans la commission internationale du Caire.”²⁵

To the Italian Minister: J’ajouterai même au delà de ce que vous m’avez demandé, mon chèr comte, que Son Altesse tient à cette composition et elle entend la maintenir pendant l’époque quinquennale d’essai, de sorte que, si pendant cette periode quelqu’un des conseillers devrait, pour une cause ou pour une autre, quitter sa position, elle entend le remplacer en engageant un autre magistrat de la même nationalité.”²⁶

Returning now to the question raised in the Royal Egyptian Government’s Note of May 16, 1926, it is to be recalled that in his conversation of March 26 [28], 1927, with His Excellency Sarwat Pasha the American Minister considered the matters discussed in that Note, paragraph by paragraph, as follows:

1) Paragraph 1. The American Minister pointed out that the Royal Egyptian Government had evidently read into his Note of April 9, 1926, a meaning which did not follow from the statements made therein. He stated that it was not his intention, nor was it the intention of his Government, to propose that the then vacant seat on the Cairo Mixed Court of First Instance should be filled by an American nominee.

2) Paragraph 2. With the foregoing discussion of the principle of equal representation in mind, the American Minister pointed out that such of the pertinent correspondence, exchanged between Egypt and the powers during the decade beginning 1867, as has come to the attention of the American Government did not appear to indicate that any formal acceptance was necessary on the part of the Egyptian Government to [of?] the statements contained in Sir Henry Elliot’s Note, for the reason that the proposals in question originated with the Khedive Ismail and were accepted by the British Government as one of the bases for the judicial reform.

In this connection also the American Minister stated that he would be pleased to receive, for communication to his Government, copies of the correspondence or other documents upon which the Royal Egyptian Ministry for Foreign Affairs relied to negative the sense of Sir Henry Elliot’s letter.

3) Paragraphs 3 to 6, inclusive. The American Minister pointed out that there was, of course, no disposition on the part of the American Government to question the statement contained in paragraph 3 of the Egyptian Government’s Note of May 16 that “the Tribunals of the Reform are Egyptian courts.” However, the further statement made in this connection, i. e. that “the freedom of the appointment and of the choice of the judges is not limited except by the conditions imposed in Article 5 of the Règlement d’Organisation Judiciaire,” is open to the objection that it was specifically with respect to this article that extensive assurances and explanations were offered by the Egyptian Government to the powers during the negotiations which led up to the definitive establishment of the Judicial Reform. The American Minister added that his Government was well aware of the attitude of the Egyptian Government in the matter of the selection of the individual foreign judges to serve on the courts, the appointment and choice of whom was vested in the Egyptian Government by the article in question. This position had been explained in detail by Nubar Pasha in a Note addressed to the American Agent and Consul General at Cairo under date of May 22, 1874, agreeing, upon the recommendation of President Grant, to appoint Mr. Victor C. Barringer as a judge on the projected mixed court of appeal. The American Government accepted that position as one necessary to the maintenance of the principle that the proposed courts were to be truly Egyptian in character.

The American Minister then stated that his Government could not, however, but feel that the contentions set forth in paragraphs 3 to 6 of the Royal Egyptian Government’s Note were not wholly pertinent to the issue. It was clear, he stated, that his Government willingly concurred in the contention of the Egyptian Government that it had accorded to each of the principal capitulatory powers a minimum representation in the mixed judiciary, i. e. a minimum of one judge on the Court of Appeal and of two judges on the inferior courts, but he formally questioned the implication, to be drawn from the further statements made in this connection, that the choice of foreign judges for the positions not thus filled might properly be exercised by the Royal Egyptian Government without applying the principle that no preponderance was to be given to any one nationality.

The American Minister concluded his comment on the four paragraphs in question by stating that his Government relied, therefore, both on the understanding existing at the time of the establishment of the courts and on the sanction which almost forty years of successful practice had given to the arrangements then put into effect to establish the desirability of a return to the application of the principle of equal representation amongst the principal capitulatory powers to the composition of the mixed judiciary. In view of the recent departures from this principle, he added, it is probable that such return could most appropriately be effected either by the gradual replacement, when occasion should permit, of the additional British, French and Italian judges now serving on the courts or by the appointment thereto of such numbers of additional American, French and Italian or other judges as would re-establish equality of numbers amongst the representatives of the four remaining principal capitulatory powers.

4) Paragraph 7. The American Minister set forth to His Excellency Sarwat Pasha the pertinent comment on the question raised in this paragraph as contained in the introductory passages of the present memorandum, particularly that beginning on page four.

The American Minister concluded his remarks by stating that his Government did not desire nor did it feel that it needed to enter at that time into a more detailed discussion of the position taken by the Royal Egyptian Government in its Note of May 16, 1926. That position, refusing as it did to recognize as applicable the aforementioned principle of equal representation, was so evidently opposed to the views of his Government, such denial was so clearly contrary to the understanding of the American Government both at and continuously since the time of its first adherence to the Mixed Courts, that it was felt that, before making any further observations with respect thereto, should such prove necessary, it was essential to request that the Egyptian Government set forth at greater length and in greater detail the arguments which led it to the conclusions expressed in its Note of May 16, 1926. The American Minister requested, therefore, that His Excellency Sarwat Pasha furnish him in due course, for communication to his Government, with an exposé of the evidence upon which was based the conclusion expressed in that Note with respect to Sir Henry Elliot’s letter.

It is to be noted also that in response to the American Minister’s representations as set forth above His Excellency Sarwat Pasha stated that he thoroughly understood the position taken by the American Government and that, after taking up in due course with the Royal Egyptian Minister of Justice the various particular points raised by the American Minister, he would make appropriate reply. The American Legation has no record of any such reply having been made either orally or in writing.

In addition to the foregoing recapitulation of the sense of the verbal reply made on March 28, 1927, to the Royal Ministry’s Note of May 16, 1926, it is believed to be pertinent to add at this time the following more detailed comment with respect to the statements made in the sixth paragraph of that Note.

In the paragraph in question it is stated that “the Egyptian Government has always reserved to itself the right to choose freely among all the capitulatory and even non-capitulatory powers for the positions of judges created or to be created in the Court of Appeal and in the courts of first instance” and that “this has been recognized in various correspondence between Egypt and the powers.” In this connection the Legation has the honor to state that diligent search has been made in its archives and in those of the Department of State, Washington, and that no record has been found of any correspondence between Egypt and the United States which thus contravenes the basic principle accepted as fundamental when by the Proclamation of the President dated March 27, 1876 the adherence of the United States was given to the judicial reform in Egypt. The Legation desires, therefore, to reiterate the request made on March 28, 1927, by the American Minister, that it be furnished in due course, for communication to the American Government, with copies of any papers which the Royal Ministry may believe necessary to a further consideration of the question at issue.

In the paragraph in question it is stated also that “at the beginning of the reform there were three Dutchmen and three Belgians in the courts of first instance.” The American Government does not contravert this fact. It desires to point out, however, that at that time, the United States had, as had each of the other six principal capitulatory powers, an aggregate representation of three judges, one on the appeal bench and two on the courts of first instance, such aggregate representation more than offsetting, in the opinion of the American Government, the three first instance posts then held by Belgian and Dutch judges.

The paragraph in question concludes by bringing out the fact that “later two Swiss judges were appointed although Switzerland is not a capitulatory country.” As the American Government has understood the circumstances of the nomination of these two Swiss judges and without wishing in any sense to comment on the legality of their appointment, the action in question was taken rather with a view to maintaining the principle of equality of representation than to departing therefrom. It appears from the Legation’s current records of the period in question that there had been from 1900 onwards a considerable increase in the business of the Mixed Courts, with the result that the Egyptian Government was faced with a situation not unlike that which it is desired effectively to meet today. The Legation’s records suggest that at first no new judges of first instance were appointed to meet this situation because of this principle of equal representation. The breaking up of the dual Monarchy of Norway and Sweden then appears to have afforded an opportunity for the appointment in 1907 of two new judges, a Norwegian and a Swede. And, two years later, the Legation’s records suggest that it was seen that further judges of first instance were required and that to meet the situation Switzerland was asked to designate first but one judge and later a second.

19. Copy transmitted to the Department by the Minister in Egypt in his despatch No. 174, April 19; received May 11, 1929.
20. Note of April 9, 1926, from the American Minister to the Egyptian Minister for Foreign Affairs, and note of May 16, 1926, from the Egyptian Ministry for Foreign Affairs to the American Legation, Foreign Relations, 1927, vol. ii, pp. 556 and 557.
21. See despatch No. 980, March 28, 1927, from the Minister in Egypt and memorandum of March 28, 1927, of an interview between the American Minister and the Egyptian Minister for Foreign Affairs, ibid., pp. 566 and 569.
22. ibid., 1873, vol. ii, p. 1118.
23. 19 Stat. 662; Foreign Relations, 1876, p. 1.
24. Not printed.
25. Translation: “… the intention of His Highness is to constitute our court of appeal of judges chosen from countries which have been represented and have studied the question in the international commission at Cairo.”
26. Translation: “I shall add, even beyond what you have requested of me, my dear count, that His Highness adheres to this composition and intends to maintain it during the quinquennial period of trial, so that, if during this period any one of the judges should, for one cause or another, vacate his position, His Highness intends to replace him by engaging another judge of the same nationality.”